WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
COURT OF APPEAL FOR ONTARIO
DATE: 20231023 DOCKET: C68884
Roberts, Coroza and Monahan JJ.A.
BETWEEN
His Majesty the King Respondent
and
K. C. Appellant
Counsel: Michael Peterson, for the appellant David Tice, for the respondent
Heard and released orally: October 20, 2023
On appeal from the conviction entered on September 3, 2020, by Justice Lynn Robinson of the Ontario Court of Justice.
REASONS FOR DECISION
Background
1The appellant appeals his conviction for sexual assault. He has abandoned his sentence appeal.
2The incident which led to his conviction occurred in the appellant’s bedroom in his parents’ home on December 20, 2017. The complainant’s evidence was that the appellant forced her to have sexual intercourse with him by wrestling her onto the bed and penetrating her while holding her forearms and wrists up. The appellant, on the other hand, testified that the complainant initiated sexual contact with him, and was an enthusiastic participant in their consensual sexual activity.
3The appellant’s parents and brother testified on behalf of the defence. Although none of those family members had direct knowledge of what occurred in the appellant’s bedroom on December 20, 2017, the appellant’s mother testified that she heard giggling from inside the bedroom while she was performing some family chores nearby.
The Trial Decision
4The trial judge properly instructed herself on the principles set out in R. v. W. (D.), [1991] 1 S.C.R. 742. She rejected the evidence of the appellant, relying in particular on the fact that various text messages that were exchanged between the appellant and the complainant that day contradicted his evidence. The trial judge characterized the text messages from the appellant as being angry, demanding and demeaning. The trial judge summarized these messages as the appellant telling the complainant to “do what I tell you to do when I tell you to do it.”
5The trial judge also found the evidence of the appellant’s mother regarding the giggling she claimed to have heard to be improbable.
6In contrast, the trial judge accepted the evidence of the complainant, finding it to be logical and consistent, and supported by other evidence, including the text messages and a 911 call the complainant had subsequently made to the police. Based on evidence which she accepted, the trial judge found the Crown had proven the guilt of the appellant beyond a reasonable doubt.
Analysis
7The appellant fails to identify any legal error in the trial judge’s reasons. Instead, he challenges the credibility findings made by the trial judge, advancing various alternative interpretations of the evidence which he claims support his version of events and contradict that of the complainant.
8We see no material misapprehension of the evidence by the trial judge that would permit appellate intervention. The trial judge’s findings were reasonable, free from error and open to her on the record. A trial judge’s credibility findings are entitled to a high degree of deference on appeal: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375 at paras. 81-82. The trial judge also provided a reasoned analysis in support of her findings.
Disposition
9Accordingly, we see no basis upon which to intervene. The appeal from conviction and sentence is dismissed.
“L.B. Roberts J.A.”
“S. Coroza J.A.”
“P.J. Monahan J.A.”